Friday, August 17, 2007

An op-ed posted today on the Taipei Times website and written by Chen Lung-chu, chairman of the Taiwan New Century Foundation, president of the Taiwanese Society of International Law, and a professor at the New York Law School:

Taiwan's statehood is undeniable

In terms of international law, Taiwan has not been a part of China since 1895. Taiwan has ecome a country through a continuous process of evolution. In the process of democratization and Taiwanization -- and thanks to the effective self-determination of its people -- Taiwan has evolved from a territory under military occupation following World War II to a country with the sovereignty and independence of a nation-state. This theory of Taiwan's evolution into a state conforms to historical developments, changing political conditions and the dynamic character and principles of international law. I support this theory of evolved nationhood, which I described previously on this page ("The evolution of Taiwan's statehood," Aug. 9, page 8).There are other theories regarding Taiwan's international legal status in addition to the evolutionary theory of statehood.

One theory is that Taiwan is part of China. This is what the People's Republic of China (PRC)argues, citing history, the Cairo Declaration, the Potsdam Declaration, succession to the Republic of China (ROC), UN General Assembly Resolution 2758, and that "Taiwan is an internal affair of China," to support its position.

Yet Beijing's argument fails the tests of both reality and international law, for the following reasons.

One, Taiwan has been fought over by foreigners for hundreds of years, while the Taiwanese have battled for their existence and self-governance. There have been the indigenous peoples and the Han Chinese, the Dutch and Spanish colonial empires competing over Taiwan, Cheng Cheng-kung's (鄭成功) family dynasty, the nominal rule of the Qing dynasty (which ceded Taiwan to Japan shortly after making it a province), the brief establishment of the Republic of Formosa, 50 years of Japanese colonial rule and the military occupation following World War II.Taiwan has evolved into a sovereign and independent nation. Clearly, Taiwan has not been "an inseparable part of China since ancient times."

Two, as for ownership of Taiwan's territory, the Cairo and Potsdam declarations were overridden by the 1951 Treaty of San Francisco with Japan. The Taiwan that Japan gave up in the treaty, including the Penghu Islands, belonged to neither the PRC nor the ROC. No wonder Beijing has avoided bringing up the treaty, which carries the most weight in international law.

Three, when the PRC was established on Oct. 1, 1949, the ROC had "militarily occupied" Taiwan on behalf of the Allied forces but not acquired sovereignty over or ownership of Taiwan. It is impossible for the PRC -- nor does it have the right -- to inherit powers that the ROC never had.

Four, UN Resolution 2758 does not accede that Taiwan is a part of the PRC.

Five, since its founding the PRC has never effectively controlled, ruled or exercised jurisdiction over Taiwan. By international law, Taiwan is not an "internal affair of China" but a question of international concern.

Taiwan and the PRC are two different countries, therefore the dispute over Taiwan's legal status involves interpretations of international agreements and international law; the PRC's threats toward Taiwan jeopardize peace in the Asia-Pacific region and the world; China's "Anti-Secession" Law violates international law; and Taiwan's future involves the effective implementation of the principles of self-determination enshrined in international law, and will affect the fundamental human rights and wellbeing of 23 million Taiwanese.

The second theory about Taiwan's international status is that it was left undetermined. According to the Treaty of San Francisco, which took effect in 1952, Japan officially gave up all rights, title and claims over Taiwan. Yet the treaty did not stipulate who Taiwan would belong to.

Thus, Taiwan does not belong to China, and its international legal status is still undetermined.The ideal way to resolve this problem is to apply the principle of self-determination of the people stipulated in the UN Charter by holding a national plebiscite under the auspices of the UN and let the people of Taiwan decide. But international and domestic political constraints have prevented this from happening. Therefore, there are still many proponents of this theory today.

The third theory is that Tai-wan's position was undetermined in the past and remains undetermined now. Some say Taiwan is still under the military occupation of the ROC; some say the US has sovereignty over Taiwan because it was the main victor over Japan; still others think sovereignty over Taiwan belongs to the Taiwanese people, but that Taiwan still is not a country because the ROC has not ceased to exist and the Taiwanese government has not declared independence.

This theory is a rigid interpretation of international law, and ignores that the formation and application of international law is dynamic. There have been major developments worldwide since 1952, just as there have been in Taiwan. Taiwan's international position cannot be frozen as if it were still 1952.

As Taiwan's international position has evolved from undetermined to determined, the expression of the Taiwanese collective democratic has played a crucial part in the successes Taiwan has achieved.

Even if Taiwan's position remains undetermined and it continues to be occupied by the ROC, one cannot ignore the reality that the ROC has undergone "Taiwanization" which has changed the nature of its military occupation.

The US never advocated having sovereignty over Taiwan after Japan gave it up at the end of the war. The Taiwan Relations Act treats Taiwan practically as a country.Since Japan gave Taiwan up, the assertion that sovereignty belongs to all of its residents conforms to the principles of sovereignty being in the people and self-determination enshrined in international law.

Is the ROC extinct? When did it die? Opinions are especially divided on this issue. As Taiwan has evolved into a sovereign nation, it is worth considering whether or not it needs a US-style declaration of independence. Applying to become a member state of the UN using the name "Taiwan" is both in form and substance an active declaration that Taiwan is a sovereign and independent country.

The fourth theory is that Tai-wan has de facto independence, but it still does not have de jure independence.

The standards for differentiating between de facto and de jure independence are quite vague. Is it determined by the quality and size of the countries that recognize the country? Or what degree of universal recognition must be reached before a country has de jure independence? From the examples of the more than 100 countries that have achieved independence over the past half century, this kind of differentiation has become meaningless.

According to international law, countries enjoy sovereign equality and independence regardless of their size, strength, wealth, which countries recognize them or how many diplomatic allies they have.

Taiwan has evolved from an occupied territory into a country, but it is still not a normal country. The reality is that Taiwan represents our state and the "Republic of China" is an illusory title which creates divisions in national identification and makes it more difficult for Taiwan to progress internationally. The international community uses the name "Taiwan" but objects to Taiwan's government and its people using that same name, which is utterly unreasonable.

Taiwan needs to normalize itself. Turning Taiwan into a normal country both in name and in fact is the true path for Taiwanese to follow.

Chen Lung-chu's opening comments are: Taiwan has ecome a country through a continuous process of evolution. In the process of democratization and Taiwanization -- and thanks to the effective self-determination of its people -- Taiwan has evolved from a territory under military occupation following World War II to a country with the sovereignty and independence of a nation-state. This theory of Taiwan's evolution into a state conforms to historical developments, changing political conditions and the dynamic character and principles of international law.

As with many other articles which Professor Chen has written, there is a consistent failure to recognize the nature and functioning of "military occupation." Specifically, there are certain features of a military occupation which must be dissected. In none of Prof. Chen's articles does he even touch on such issues.

For Taiwan, we must address the issues of (1) when did the military occupation begin, (2) when did the military occupation end, and (3) which is "the occupying power"?

For Taiwan, the beginning of the military occupation was Oct. 25, 1945. As for "the occupying power," that is "the conqueror," and in the situation of Taiwan, all military attacks were conducted by US military forces. The USA is therefore the occupying power. In order for the military occupation of Taiwan to have ended, there would have to be a formal announcement by the US Commander in Chief, as there were in the historical situations of the military occupations of California, Puerto Rico, Guam, the Philippines, Cuba, and even the Ryukyu Island Group (which was later elevated to the status of UN Trusteeship, but remained under US military government jurisdiction.)

In the meantime, the ROC continues to exercise delegated administrative authority for the military occupation of Taiwan, even up to the present day. The ROC (which has become a government in exile as of Dec. 1949) exercises effective territorial control over Taiwan, but not sovereignty.

In summary, Prof. Chen is incorrect in asserting that Taiwan has evolved into a "country." (I would challenge Prof. Chen to provide us with the specific date when this momentous event was supposed to have happened.) In fact, Taiwan is merely a term of geography, it is not the name of a nation-state in the world today. The ROC on Taiwan is a subordinate occupying power and government in exile.

Prof. Chen needs to climb outside his area of expertise in "civilian" international law matters, and start researching the international laws of war, as well as the customary precedent associated therewith. Hopefully, at that time he will see the many failings of his analysis . . . . .